Chattisgarh High Court

Smt. Y. Meera Bai vs G. Venkat Giri Rao on 18 July, 2022

                                                                                                 AFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                   Criminal Miscellaneous Petition No.1479 of 2019

                               Order Reserved on : 7.7.2022
                              Order Passed on :            18.7.2022

Smt. Y. Meera Bai, W/o G. Venkat Giri Rao, aged about 33 years, R/o
through Y. Rama Rao, Venkteshwar Marbal, Panchsheel Nagar (E), G.E.
Road, Charoda, Tahsil Patan, District Durg, Chhattisgarh
                                                         ---- Petitioner
                                   versus
G. Venkat Giri Rao, S/o Venkat Rao, aged about 37 years, Current Address
Door No.46-11-35, Sirapurvani Street, Doandaparthi, Vishakhapattnam-16
(AP), Permanent Address through G. Venkat Rao, Door No.57-22-7A,
Subhash Nagar, Kanchara Palem, Vishakhapattnam (AP)
                                                                                   --- Respondent

-------------------------------------------------------------------------------------------------------

For Petitioner : Ms. Fouzia Mirza, Senior Advocate with Shri Navin Shukla, Advocate For Respondent : Shri Vipin Tiwari, Advocate

-------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. ORDER

1. The instant petition has been filed by the wife under Section 482 of

the Code of Criminal Procedure for recalling the order dated

30.4.2019 passed by this Court in Criminal Revision No.575 of

2015 (Annexure P1).

2. Briefly stated the facts of the case are that the Petitioner is wife of

the Respondent. Their marriage was solemnised on 11.10.2011.

The Petitioner/wife filed an application under Section 127 of the

Code of Criminal Procedure. Vide order dated 6.6.2015, the Family

Court, Durg in Miscellaneous Criminal Case No.419 of 2014

allowed the application of the Petitioner/wife and granted her

monthly maintenance of Rs.10,000. Against the said order of the

Family Court, a revision, being Criminal Revision No.575 of 2015

was preferred by the Respondent/husband. After receipt of a

notice of the revision, Counsel for the Petitioner/wife filed

vakalatnama on 12.8.2015. The matter was fixed for final hearing

in the weekly list of 4.2.2019 (Annexure P2). The matter was listed

for final disposal/final hearing at item No.27, list-2 before this Court.

Since the name of the Counsel for the Petitioner/wife did not

appear in the said cause list, the Petitioner/wife's Counsel did not

appear before the Court when the matter was called for final

hearing. Hence, the matter was heard without any opportunity of

hearing to the Petitioner/wife and ex parte order was passed by this

Court in the revision on 30.4.2019 (Annexure P1).

3. Learned Senior Counsel appearing for the Petitioner/wife submitted

that while passing the impugned order dated 30.4.2019, this Court

has especially stated in paragraph 5 that none appeared for the

wife despite the matter was called out for hearing twice being

unaware of the fact that the name of the Counsel for the Petitioner/

wife neither reflected in the cause list for 4.2.2019 nor was any

message regarding the same received by the Counsel. Hence, the

Petitioner/wife did not get an opportunity to present her case

through her Counsel before this Court. Since no opportunity of

being heard was given to the Petitioner/wife and her Counsel was

unaware of the date of hearing of the revision, none could appear

on behalf of the wife and the revision was heard ex parte.

Therefore, a prejudice is caused to the Petitioner/wife. Thus, it is

prayed by Learned Senior Counsel that a reasonable opportunity of

hearing be afforded to the Petitioner/wife and the impugned order

dated 30.4.2019 be recalled. Learned Senior Counsel placed

reliance on Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 and

Ganesh Patel v. Umakant Rajoria, S.L.P. (Crl.) No.9313 of 2021

order dated 7.3.2022.

4. Learned Counsel appearing for the Respondent/husband opposed

the arguments raised by Learned Senior Counsel for the Petitioner/

wife and submitted that the impugned order dated 30.4.2019 was

passed on its own merits and the Petitioner/wife is seeking an order

to recall the impugned order which is not provided by the law. It

was further submitted that once the order is passed on its own

merits, it cannot be reviewed. If there is any typographical error

brought to the knowledge of the Court, that can only be cured. The

only remedy now available to the Petitioner/wife is to approach the

Supreme Court. The instant petition filed by the Petitioner/wife is

not maintainable. Reliance was placed on a judgment of a Single

Bench of Allahabad High Court in Yaqoob Husain v. State of U.P.,

(2021) CriLJ 1205.

5. I have heard the arguments advanced on behalf of the parties and

perused the entire material available with due care.

6. The only question emerges for consideration is as to whether in

view of the bar contained in Section 362 of the Code of Criminal

Procedure the judgment or order rendered/passed by this Court

can be recalled though passed in absence of the Counsel.

7. Undisputedly, Criminal Revision No.575 of 2015 was heard finally

on 8.2.2019 and the order was passed on 30.4.2019 (Annexure

P1). At the time of final hearing on 8.2.2019, none appeared for the

Petitioner/wife nor did the Petitioner herself appear in person. From

perusal of the weekly cause list for 4.2.2019 of this Court

(Annexure P2), it appears that Criminal Revision No.575 of 2015

was listed for final hearing at item No.27 of list-2. In the said cause

list, only the name of the Respondent/husband's Counsel is

mentioned. In Criminal Revision No.575 of 2015, vakalatnama for

the Petitioner/wife was filed by her Counsel on 12.8.2015

(Annexure P4). Thus, it is apparent that on the date of publication

of the weekly cause list for 4.2.2019 (Annexure P2), despite the

vakalatnama for the Petitioner/wife was already on record, her

Counsel's name was not shown in the cause list (Annexure P2) and

at the time of hearing on 8.2.2019 neither the Petitioner/wife's

Counsel appeared nor did the Petitioner herself appear in person

before this Court and, therefore, the ex parte order (Annexure P1)

was passed.

8. In Yaqoob Husain case (supra), referring to the various judgments

of the Supreme Court, the Learned Single Bench of Allahabad High

Court was of the view that no judgment or order can be altered,

reviewed or recalled in view of the bar contained in Section 362 of

the Code of Criminal Procedure.

9. Dealing with the issue, in Budhia Swain case (supra), the Supreme

Court observed as follows:

"8. In our opinion a tribunal or a court may recall an order earlier made by it if

(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,

(ii) there exists fraud or collusion in obtaining the judgment,

(iii) there has been a mistake of the court prejudicing a party, or

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence."

10. Reiterating the above judgment, the Supreme Court, in Ganesh

Patel case (supra), observed that the application for recall of the

order is maintainable when it is an application seeking a procedural

review, and not a substantive review to which Section 362 of the

Code of Criminal Procedure would be attracted.

11. If I examine the facts of the instant case in the light of above

observations made by the Supreme Court, it is clear that at the time

of hearing on 8.2.2019, Counsel for the Petitioner/wife was not

present before this Court nor was the Petitioner/wife herself

present. Despite the fact that vakalatnama for the Petitioner/wife

was filed on 12.8.2015 (Annexure P4), in the weekly cause list

published for 4.2.2019 (Annexure P2), name of her Counsel was